Hammond v. People

• Decision Date: 25 October 1902
• Citation: 199 Ill. 173,64 N.E. 980
• Parties: HAMMOND v. PEOPLE.
• Court: Illinois Supreme Court

199 Ill. 173

64 N.E. 980

HAMMOND

v.PEOPLE.

Supreme Court of Illinois.

Oct. 25, 1902.

Error to circuit court, Peoria county; N. E. Worthington, Judge.

Jasper F. Hammond was convicted of assault with intent to commit murder, and he brings error. Reversed.

Whitmore, Barnes & Boulware, for plaintiff in error.

Wm. V. Tefft, State's Atty., and Edwin Hedrick, Asst. State's Atty.

BOGGS, J.

This writ of error brings before us the record of the conviction in the circuit court of Peoria county of the plaintiff in error of the crime of an assault upon one Joseph Dixon with intent to kill and murder the said Dixon, upon which judgment the plaintiff in error was sentenced to be confined in the state penitentiary at Joliet for an indeterminate period. The indictment contained three counts. In the first and second of the counts the crime charged was an assault with intent to commit murder. In the third count the charge was an assault with a deadly weapon with intent to inflict a bodily injury, without any considerable provocation, and under circumstances showing an abandoned and malignant heart.

It appeared from the evidence that the plaintiff in error had married a sister of said Dixon, that a decree of divorce had been awarded to Mrs. Hammond, and that the custody of the daughters (five in number) of the married couple had been given to the wife, and the custody of their only son given to the husband. The decree provided that the plaintiff in error should be allowed to visit the children at the home of their mother twice a week, within reasonable hours of the day, and that Mrs. Hammond should have the same privilege to visit their son at the home of the father. Soon after the rendition of the decree, Dixon and the plaintiff in error had a fight, in which the plaintiff in error was overmatched and beaten; and it was proven he had said to one witness, ‘I have a gun, and, if it comes up again, I shall probably use it,’ and to another ‘that Dixon had done him up once, and, if there was a reoccurrence of the trouble, he had got a pistol, and would kill Dixon if he could.’ The plaintiff in error testified that he said, in substance, that if Dixon jumped on him again, to whip him, he would take care of himself, etc. Mrs. Hammond and her daughters resided with the prosecuting witness, Dixon, at his home, on Adams street, in Peoria. The plaintiff in error lived on the same side of Adams street, a few blocks from the Dixon home. About 7 o'clock on the evening of the 18th day of April, 1901, the plaintiff in error was walking up Adams street, on his way home by the usual route, which led past Dixon's house. Dixon came out, and the affray which led to the indictment and conviction of the plaintiff in error then occurred. The version of the occurrence given by the prosecuting witness was substantially as follows: ‘I had just got home from work in the evening. I looked out and saw Hammond come along in front. He was talking to the [his] children. I heard him say, ‘You need not get so God damned gay about it.’ I stepped out on the front porch and told him to stop his swearing. He said he was not swearing. I walked down to the front, where Hammond was. He asked me if he could not talk to his own children without me interfering. I told him yes, but he would have to act the man. I told him he could not come around there and raise a disturbance, or go about the neighborhood talking about the women. I asked him what he had been telling Nelson about my mother and sisters. He said, ‘Nothing.’ I told him if he had I would punch his face for him right there. He started off and walked about ten feet. I supposed he was going to leave. I was in the act of turning to go into the house, and he drawed out a gun and said, ‘You God damned son of a bitch! if it is trouble you are looking for, trouble you can have;’ and just as I started toward him he fired, and I just got hold of the muzzle of the revolver when he fired the second time. When I got to him I got hold of the gun, and I struck at him. I struck him three or four times. I think I knocked him down. I still had hold of the gun. After I got him down I took the gun in my right hand, and started choking him with my left. I had the gun very near out of his hands, when Mr. Fisher and my sister, Mrs. Hammond, came out. They took the gun out of my hands. Fisher throwed his arms around my neck and throwed me off Hammond, backward. Then Harris came and arrested us. We were then taken to patrol box. On the way there he said several times he was sorry his aim was bad. Neither of the shots hit me.' On cross-examination he stated he told the plaintiff in error that, if he (plaintiff in error) ‘had said such things to Nelson, I wouldpunch his face for him. Then he called me a God damned son of a bitch, and pulled out his revolver and told me if it was trouble I was looking for, it was trouble I could have; and he told me he would go with me and face Nelson, and I told him I did not want to go then. I told him that whenever I met him he always looked like he wanted to jump right on me and give me a thumping. I told him he would stand and look at me like he wanted to jump on me and pound me.’ Dixon also testified: ‘Hammond had not spoken to me before I came out and spoke to him.’ The substance of the testimony of the plaintiff in error as a witness was: ‘I went down the street alone. I was going home. As I came across the street, going down between Sanger street and the Dixon residence, there is a vacant lot or room for a building in the Dixon yard. As I came to the fence that divided this yard, I saw my oldest daughter, and the baby was trying to run away from her. She picked the baby up. She did not see me as I came, and stood eight or ten seconds, and hollowed, ‘Hello! Pud.’ That is a nickname I used to have for her. She did not hear me, and I said again, ‘Hello! Pud.’ I don't remember whether she saw me or not She went in the house with the child. I started down the street, and as I got down a little past the walk, where the steps go into the yard, Mr. Dixon came to the door and said something. I had not seen Dixon before he came to the door. I said, ‘Was you speaking to me?’ He spoke again, and I did not understand him either time, and I said, ‘I didn't understand you.’ Then he walked down about halfway from the house to this brick wall, and he says, ‘You are around here cussing and swearing, ain't you?’ I said, ‘I didn't hear anybody swearing or cursing. I hollowed ‘Hello’ at Pearl, and, if that is swearing, then I must have sworn.' He said, ‘Well, I thought you did.’ I said, ‘You are mistaken.’ Then he went on and told me a lot of stuff that Mr. Nelson told him. I told him that certain things were not true; there were some of them I did not say. He said, ‘Well, if I was satisfied that you said that, I would just mash your face right here for you.’ I said: ‘I will tell you, Joe; I will go with you to Mr. Nelson. Whenever it is convenient for you, I will make it convenient for me.’ By this time he had walked up to me. After I told him that I would go with him to Nelson's, he says, ‘Well, I don't want you to disgrace Pearl by speaking to her any more.’ I said, ‘I am not asking you nor any other damned man whether I can speak to my own children.’ He says, ‘Well, every time you see me on the street you are always making eyes at me.’ I said, ‘Dixon, I want nothing to do with you,’ and I turned around and started down the street. Dixon says, ‘You dirty cur! I will get you,’ and jumped off this walk, and he came at me. By the walk I mean the wall. I told him to keep away,-that I did not want anything to do with him. He says, ‘You dirty cur! I will get you.’ Then I pulled out a gun and fired. I shot over his head, in the air. We clinched. He was scuffling for the gun, and so was I. He took a couple of soaks at me, and was trying to get the gun, and I was trying to prevent him from getting it. I got knocked down, and he got on top of me and was choking me. We were not very far apart when the first shot was fired. Dixon was out on the sidewalk. I was backing away from him, and he was following me up. He came toward me in a very threatening manner and told me, ‘You dirty cur! I will get you.’ I shot to keep him away from me. I didn't want anything to do with him, and many a time I have walked out of my way when I have seen him there, in order to keep from meeting him.' The affray was witnessed by Mrs. Hammond, Joseph Eaton, Burt Urton, and Ella Archdale, whose testimony, on the whole, tended to corroborate the version given by the prosecuting witness, and by Thomas Carter, Minnie Brandenburg, August Reinman, and Christov Reinman, whose testimony tended to support the version of the plaintiff in error, particularly to the effect that Dixon was advancing on the...